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Comments of the Internet Archive on the U.S. Copyright Office Notice of Inquiry on 
the Digital Millennium Copyright Act Section 512 Safe Harbors 


March 22, 2016 


Introduction 

The Internet Archive thanks you for this opportunity to comment on the DMCA safe 
harbors. 

The Internet Archive is a 501(c)(3) non-profit organization based in San Francisco, 
California. Our mission is to provide universal access to all human knowledge. As part of 
that mission, we collect, archive, and provide public access to many different types of 
material digitally, including websites, music, software, images, books, educational materials, 
video games, films, ephemera, and more. Some of these materials we collect ourselves. 
However, many of the materials in our collections were uploaded by third-party users of the 
Internet Archive — librarians, archivists, enthusiasts, collectors, and other members of the 
public. The DMCA safe harbors help us do this. Given the high statutory damages pennitted 
by the Copyright Act and high court costs, a copyright infringement lawsuit could be enough 
to cripple our small nonprofit organization. 

We provide comments here in our capacity as both as an online service provider that 
hosts so-called “user generated content” and as a library with a mission to preserve and 
provide public access to cultural materials. As we move increasingly towards a world where 
human knowledge is stored digitally, we are likely to see more libraries playing the role of 
host and curator of content posted by users. As such, it is important to understand how library 
interests intersect with the DMCA safe harbors and to ensure that libraries continue to enjoy 
the protection of these safe harbors in the future. 

Relevant Questions from the Notice of Inquiry 

We respond below to the questions where our unique position at the intersection of 
Internet and the library world may be able to shed light for the Copyright Office into the 
ways in which the DMCA safe harbors are working well, and allow us to address areas for 
potential improvement. 

Question 5. Do the section 512 safe harbors strike the correct balance between 
copyright owners and online service providers? 

In crafting the DMCA, Congress created a system of shared responsibility for 
managing potential copyright infringement online. On the whole, we believe that this system 
is working well, and should not be significantly overhauled. The DMCA safe harbors provide 
important certainty, allowing us to collaboratively build our collections with our community. 
The DMCA safe harbor has allowed many online communities, such as the Internet 
Archive’s, to grow and thrive. Our community regularly contributes older, at-risk materials 
for preservation and public access. For example, our some of our community collections 


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include feature length films 1 , short films 2 , old radio programs 3 , early 20th Century 78rpm 
records and cylinder recordings 4 , and pre-1964 architectural trade catalogs, house plan books, 
and technical building guides that document past design and construction practices 5 . Without 
the protection of the DMCA safe harbors, we might not be able to host collections like 
these — despite the fact that no one has complained about the vast majority of the materials. 

There are significant burdens on both sides of the DMCA notice and takedown 
process. The DMCA places the burden of identifying and notifying service providers of 
claimed infringement squarely on the owners of the copyrighted material. Upon notice, the 
responsibility for removing or disabling access to that material shifts to the service provider. 
This balance makes sense, as it places the burden on the party with the relevant knowledge 
and ability to act. For example, only copyright holders know what they own, what materials 
they have licensed, and where their materials are allowed to appear. Given that many of the 
works in our collections are older and have no current commercial life, it can be very 
difficult to detennine who the owner may be, or whether they are still protected by copyright 
at all. Many users place works in our collections (as opposed to placing them on a 
commercial platform) in order to ensure that they are preserved for future generations — with 
no intent to violate the law. 

The DMCA’s express provision that service providers have no affirmative duty to 
monitor for infringing activity remains an extremely important safeguard both for free speech 
and for the continuation of traditional library activities in the digital age. There is a 
distinction between commercial piracy and noncommercial preservation and sharing of our 
cultural heritage. The context in which a user posts material that is owned by another person 
or entity must be evaluated before determining whether such posting is infringement or fair 
use. This is why proposals for “notice and staydown,” which would appear to require 
platforms to use automated processes to make sure certain materials are never again able to 
be posted to the internet — regardless of context — threaten to chill legitimate speech and fair 
uses of materials. Libraries have long been champions of intellectual freedom, and are 
encouraged by the Library Bill of Rights to “challenge censorship in the fulfillment of their 
responsibility to provide information and enlightenment.” 6 A “notice and staydown” regime 
would violate these fundamental principles. 

The takedown process may seem trivial in the era of YouTube’s automated Content 
ID system. But the vast majority of service providers do not have the resources to develop 
such technology, and instead rely on human review and responses to notices of claimed 
infringement. We, for example, have no in-house legal staff and our overall staffing is very 
small in relation to the amount of data we are able to host. Considering that we have over 26 
petabytes of data in our collections, and about 100,000 items per month are uploaded by 
users other than Internet Archive staff, we receive a relatively small number of DMCA 


1 See https://archive.org/details/feature_films 

2 See https://archive.org/details/short_films 

3 See https://archive.org/details/oldtimeradio 

4 See https://archive.org/details/78rpm 

5 See https://archive.org/details/buildingtechnologyheritagelibrary 

6 The Library Bill of Rights, available at: 

http://www.ala.org/advocacy/sites/ala.org.advocacy/files/content/intfreedom/librarybill/lbor.pdf. 


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notices. Nevertheless, we take our role seriously, and we devote a significant amount of time 
and resources to dealing with the notices we do get. As described further below, some notices 
take much longer than others to process. 

The current system already imposes significant burdens on service providers, and we 
believe that altering these burdens to shift more responsibility to affirmatively monitor for 
infringement would force small nonprofits and libraries without huge budgets for legal staff 
to divert even more of their already strained resources into managing copyright claims, or 
else carry huge risk of liability. 

Question 8. In what ways does the process work differently for individuals, small scale 
entities and/or large scale entities that are sending and/or receiving takedown notices? 

As the Copyright Office has recognized, many different types of entities currently 
enjoy safe harbor protection, including nonprofit libraries. Recent advances in technology 
have allowed libraries to house increasingly massive collections of electronic data, both 
through their own digitization efforts, and through community collection building that relies 
on materials posted by other parties. The DMCA offers much needed legal protection and 
certainty for these sorts of activities. Libraries and other non-profit organizations are unlikely 
to be able to bring to bear the sorts of resources that larger commercial entities may have 
access to in tenns of staff and technological tools for automated or more efficient processing 
of copyright claims. Having fewer automated tools and a smaller workforce means we may 
not always have ability to: 

• take down offending content with precision; 

• process as rapidly as bigger companies; or 

• closely review claims with any degree of complexity. 

Any proposed changes to the burdens associated with reviewing and removing 
content under the DMCA should take these issues into consideration. 

Question 9. Please address the role of both “human” and automated notice and 
takedown processes under section 512, including their respective feasibility, benefits, 
and limitations. 

We receive DMCA notices with some issue that requires clarification at least every 
week. Processing such a request might require reviewing each individual item identified, 
composing responses requesting clarification and/or clarifying when use is limited (e.g., 
lending/print-disabled access), requesting information for incomplete notices, processing and 
confirming proper take down of the item, and sending notice to the uploader and claimant 
after the item has been taken down. This clarification process takes thoughtful human review, 
and is not something that could easily be automated without the risk of many works being 
improperly removed from our collections. 

From what we are able to tell, a large proportion of the improper or incomplete 
notices we receive appear to come from third-party companies on behalf of major studios or 


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publishers. A number of these third-party services routinely send improper notices. Some 
examples of the types of improper notices we have received include: 

• Notices that mistakenly identify works that are in the public domain. For example, we 
have received notices that mistake volunteer audio recordings of classic works such 
as Jane Eyre, Sense and Sensibility, Bram Stoker’s Dracula, Moby Dick, and Little 
Women for commercial audiobook editions. 

• Notices that use loose keyword matching that overclaims works that are clearly not 
owned by the major content holders they represent. For example, we received a 
takedown notice regarding an old Salem cigarette commercial based on the term 
“Salem” which is also the title of a major television series. Similar keyword 
misidentifications frequently show up as “matches” for music, concerts, home 
movies, and public domain books. 

• Notices sent regarding reviews or lesson plans about a given work, rather than for the 
work itself. For example, we received a takedown notice regarding a lesson plan from 
the Department of Education about “To Kill a Mockingbird.” Similarly, Warner 
Brothers has sent takedown notices for reviews of films and television programs 
mistaken for the works themselves. 

• Notices containing malformed URLs that do not point to any existing materials on 
our system. 

• Repeated notices for materials weeks or months after they have already been removed 
and notice of such takedown had been sent to the claimant. 

These are just a few examples of the types of notices we receive that may require a fair 
amount of time to deal with properly. 

We also routinely receive notices that are difficult to process because they do not 
specifically identify any works or creators, or they only identify creators without identifying 
any specific works. Other notices include additional and vague threatening language 
regarding rights other than copyright. For example, Web Sheriffs notices often include a 
clause that says: “Infringed Rights: COPYRIGHT / PERFORMERS’ RIGHTS / MORAL 
RIGHTS / RIGHT-OF-PUBLICITY / PERSONAL GOODWILL & REPUTATION / 
BUSINESS GOODWILL & REPUTATION / CONSUMER PROTECTION RIGHTS as 
applicable”). We often get notices seeking to use the DMCA process to address trademark, 
privacy, and defamation, among other non-copyright issues. 

As long as these inaccurate, improper and/or incomplete notices are sent to us, human 
review on our end of the process is required so as not to overly censor legitimate speech and 
online activity. Higher standards for automated takedown notices could reduce the burden on 
our small staff in having to clarify or otherwise process these notices. 

Question 11. Are there technologies or processes that would improve the efficiency or 
effectiveness of the notice and takedown process? 

While technology and automated processes can help the notice and takedown process 
to scale in certain ways, human review must remain a crucial part of the process on both 


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sides. Otherwise, mistakes can lead to censorship and chilled speech. In addition to the 
examples above, there are other situations where it is not clear that the use of the material 
claimed in a DMCA notice is infringing. For example, we have received notices for material 
for which there is clearly no commercial interest, instead, the claim appears to be directed at 
preventing embarrassment or silencing criticism (e.g., a claim on a picture used in a critical 
video). We have also received DMCA notices that apply to a very small portion of a larger 
work, for example, comments on an archived message board or website guestbook, a poem 
on the homepage of an archived literary journal website, a quote in a yearbook, or cd cover 
art that is mistakenly identified as the full album. We also receive frequent notices for 
materials that we have pennission to archive, such as live concert recordings hosted at 
archive.org/details/etree. Processing such claims generally requires human review, and some 
amount of back and forth explanation and discussion with the copyright holder. 

We are deeply concerned that automated filtering could lead to taking down many 
materials that are being used in reasonable, legitimate and legally protected ways — especially 
when the underlying purpose of the complaint is not copyright related but rather an attempt 
to silence critical speech. 

Question 12. Does the notice and takedown process sufficiently protect against 
fraudulent, abusive, or unfounded notices? If not, what should be done to address this 
concern? 

Given the high number of inaccurate, improper and/or incomplete notices we receive 
on a regular basis, it seems reasonable to conclude that this sort of behavior is not being 
properly disincentivized. There are currently no real penalties for sending overly broad and 
inaccurate notices, and no incentives for sending accurate, well-formatted notices. Under the 
current system, copyright holders have a unilateral weapon that allows them to send 
inaccurate, improper and/or incomplete notices in bulk, without repercussion. Many 
copyright owners act in good faith, but for those who do not, there should be real penalties to 
deter bad behavior. 

Further, the law is structured to incentivize taking materials down, rather than leaving 
them up when the situation is unclear. Any time we receive a DMCA takedown notice and 
we decide not to take the material down for any reason, we risk our safe harbor protection. 
Users are not always in a position to be able to file a counter-notice since most would not 
have the resources to fight a legal battle in court should the copyright holder decide to file 
suit, even in cases where they would ultimately prevail. Some commercial platforms such as 
Google and Automattic have been able to stand up for their users in court, and we applaud 
them for doing so. However, many platforms — especially non-profit libraries — will never be 
in a position to be able to take bad copyright actors to court. 

It might make sense to create a provision in the law that would grant the service 
provider the ability to refuse to take material down when they have a reasonable, good faith 
belief that the material identified in a DMCA notice is non-infringing. For example, if a work 
appears to be in the public domain, or if the use of the material appears to be a fair use, then 
the service provider could refuse to take the material down without risking the imposition of 


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statutory damages. In combination with a simple, inexpensive dispute resolution process in 
cases where the copyright holder disagrees with the service provider’s decision, this could 
lead to far fewer bad notices being sent and fewer takedowns of legitimate materials. 

Question 23. Is there sufficient clarity in the law as to what constitutes a repeat 
infringer policy for the purposes of section 512 safe harbors? If not, what should be 
done to address this concern? 

The DMCA statute does not define what a “repeat infringer” is, but it conditions safe 
harbor protection on the service provider’s ability to reasonably implement a policy of 
tenninating the accounts of such infringers in appropriate circumstances. Congress left open 
not only the question of what a “repeat infringer” is, but also what “appropriate 
circumstances” are. As such, service providers must come up with their own definitions of 
these vague terms. This creates a fair amount of uncertainty, but also permits some flexibility 
which can have advantages. 

Our community includes hundreds of volunteer archivists who actively seek to 
preserve at-risk websites, software, old audio recordings, home videos, and other older 
materials whose commercial life (if they ever had one) is long past. We have no problem 
whatsoever with taking down current commercially viable materials, and terminating the 
accounts of users who repeatedly or flagrantly post such materials. But we have no desire to 
unfairly punish users who either made a genuine mistake in circumstances where rights 
issues were unclear (e.g., we received notices after the Golan v. Holder decision removed 
certain materials from the public domain retroactively) or users who post materials in a 
manner that may be a fair use but choose for whatever reason not to contest a takedown 
notice. 


In our community, we need to distinguish between those users who repeatedly upload 
current, commercially viable material from those who operate in good faith by preserving 
ephemera and other older materials for posterity. There is a difference between intentional 
commercial infringement and innocent noncommercial infringement. The copyright damages 
system takes this difference into account, ranging from “innocent” to “willful.” We believe 
that a properly implemented repeat infringer policy must take these considerations into 
account as well, under the auspices of “appropriate circumstances.” 

Respectfully submitted, 

The Internet Archive 


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